CLA–2 OT:RR:CTF:TCM H058795 DSR
Ms. Sandy Wieckowski, Manager
Expeditors Tradewin, LLC
11101 Metro Airport Center Drive
Building M-2, Suite 110
Romulus, MI 48174
RE: Revocation of New York Ruling Letter N050455; classification of a snowman gift bag from China
Dear Ms. Wieckowski,
This is in response to your March 2, 2009, request for reconsideration, made on behalf of Hallmark Cards, Inc., of New York Ruling Letter (NY) N050455, dated February 3, 2009, which pertains to the classification of a snowman gift bag from China, under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed the ruling and find it to be incorrect.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. § 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation was published on November 11, 2015, in the Customs Bulletin, Vol. 49, No. 44. No comments were received in response to the notice. Therefore, NY N050455 is revoked for the reasons set forth in this ruling.
FACTS:
The item is a novelty gift bag that consists of a paper bag sandwiched between two die-cut paperboard pieces shaped as identical snowmen heads and faces, with hats. The paper bag is attached to the paperboard pieces. The hats of the snowmen form handles. The paper bag acts as a means to bring the two paperboard cutouts together so as to make them easier to store or display. The item will be marketed and sold at retail as a gift bag. It is marked with country of origin China. The item measures approximately 5 ½” long by 2 15/16” wide by 5 15/16” high, and the die-cut snowmen measure approximately 6” long by 10 1/8” high.
In NY N050455, Customs and Border Protection (CBP) classified the item under subheading 4819.20.00, HTSUS, which provides for “Cartons, boxes, cases, bags and other packing containers, of paper, paperboard, cellulose wadding or webs of cellulose fibers …: Folding cartons, boxes and cases, of non-corrugated paper or paperboard.”
In your request for reconsideration, you assert that the gift bag is properly classified under subheading 4819.50.40, HTSUS, which provides for “Cartons, boxes, cases, bags and other packing containers, of paper, paperboard, cellulose wadding or webs of cellulose fibers …: Other packing containers, including record sleeves: Other.”
ISSUE:
Whether the gift bag is properly classified under (1) subheading 4819.20.00, HTSUS, which covers folding cartons, boxes and cases, of non-corrugated paper or paperboard; (2) subheading 4819.40.00, HTSUS, which covers other sacks and bags, including cones; or (3) subheading 4819.50.40, HTSUS, which covers other packing containers, including record sleeves, other.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely based on GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s 2 through 6 may then be applied in order.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The 2015 HTSUS provisions at issue are as follows:
4819 Cartons, boxes, cases, bags and other packing containers, of
paper, paperboard, cellulose wadding or webs of cellulose fibers;
box files, letter trays and similar articles, of paper or paperboard of
a kind used in offices, shops or the like:
* * *
4819.20.00 Folding cartons, boxes and cases, of non-corrugated paper
or paperboard:
* * *
4819.40.00 Other sacks and bags, including cones:
* * *
4819.50 Other packing containers, including record sleeves:
* * *
4819.50.40 Other.
* * * *
There is no dispute that the item is classified under heading 4819, HTSUS. The issue is the proper classification at the 8-digit subheading level. As a result, GRI 6 applies. GRI 6 states:
For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.The EN's for heading 48.19 provide the following concerning the boxes, cartons, and bags of the heading: "This group covers containers of various kinds and sizes generally used for the packing, transport, storage or sale of merchandise, whether or not also having a decorative value." (See the Harmonized Commodity Description and Coding System, Vol. 2, p.685-86.)
In your reconsideration request, you assert that the gift bag does not meet the definition of a “box” put forth by Webster’s Third New International Dictionary, which you state defines a box as a rigid, typically rectangular receptacle with a lid or cover in which something non-liquid is kept for storage or shipping. Relying upon that definition, you assert that because the gift bag does not possess a lid or cover and has handles, it should not be classified as a folding box under subheading 4819.20, HTSUS.
We agree that the instant gift bag is not an item contemplated by subheading 4819.20.00, HTSUS, but for different reasons. The reliance upon the definition put forth by Webster’s Third New International Dictionary is unnecessary. EN 48.19 specifically defines folding cartons and boxes, in relevant part, as "containers assembled or intended to be assembled by means of glue, staples, etc., on one side only, the construction of the container itself providing the means of forming the other sides, although, where appropriate, additional means of fastening, such as adhesive tape or staples may be used to secure the bottom or lid." There is no indication in the language of heading 4819, HTSUS, nor in EN 48.19, that a box classifiable under subheading 4819.20.00, HTSUS, must contain a lid and cannot possess die-cut handles. See HQ 557462, dated September 13, 1994 (CBP classified an open-ended, laminated gift box and a laminated, foldable pyramid box with a cord handle, under subheading 4819.20.00, HTSUS); NY F82117, dated January 18, 2000 (individually packaged folding cartons of non-corrugated paperboard that, when assembled, possessed tapered closures at the top and protruding handles, classified in subheading 4819.20.00, HTSUS). Further, and most importantly, the characteristic of the gift bag that provides its shape and form is the paper bag, and no assembly is needed in order to form the paper bag.
Subheading 4819.40.00 covers other sacks and bags, including cones. The terms “sacks” and “bags” are not defined in the tariff. If a tariff term is not defined in either the HTSUS or its legislative history, then "the term's correct meaning is its common meaning." Mita Copystar America v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod America Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult "dictionaries, scientific authorities, and other reliable information sources" and "lexicographic and other materials." C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271 (1982); Simod at 1576. For instance, a “bag” is defined by the Oxford English Dictionary as “A receptacle made of some flexible material closed in on all sides except at the top (where also it generally can be closed); a pouch, a small sack.” http://www.oed.com (last visited June 25, 2015); see also www.merriam-webster.com/dictionary/bag (last visited June 26, 2015) (“a container made of thin material (such as paper, plastic, or cloth) that opens at the top and is used for holding or carrying things”). The gift bag at issue is a flexible paper container used for packing purposes by consumers who purchase them at retail to package and carry gifts. As such, it squarely meets the definition of a “bag” classified in subheading 4819.40.00, HTSUS.
Subheading 4819.50, HTSUS, covers other packing containers, including record sleeves. Examples of such items are provided within the text of subheadings 4819.50.20, 4819.50.30 and 4819.50.40, HTSUS, to wit: sanitary food and beverage containers, record sleeves, fiber drums, cans, tubes and similar containers, and rigid boxes and cartons. The subject gift bag is clearly not one of those types of merchandise and subheading 4819.50, HTSUS, is not the proper classification for the gift bag.
You have also asked whether this product is subject to antidumping duties or countervailing duties (AD/CVD). Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification and origin rulings issued by Customs and Border Protection. You can contact them at http://www.trade.gov/ia/ (click on “Contact Us”). For your information, you can view a list of current AD/CVD cases at the United States International Trade Commission website at http://www.usitc.gov (click on “Antidumping and countervailing duty investigations”), and you can search AD/CVD deposit and liquidation messages using the AD/CVD Search tool at http://www.cbp.gov (click on “Import” and “AD/CVD”).
HOLDING:
By application of GRI 1 (and GRI 6), the gift bag is classified under subheading 4819.40.00, HTSUS, which provides for “Cartons, boxes, cases, bags and other packing containers, of paper, paperboard, cellulose wadding or webs of cellulose fibers; box files, letter trays and similar articles, of paper or paperboard of a kind used in offices, shops or the like: Other sacks and bags, including cones.” The column one general rate of duty is “Free.”
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
New York Ruling Letter N050455, dated February 3, 2009, is hereby REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division